Has India missed the boat?
Bhargava adds: "Unfortunately, neem is not the only case
where we have lost out. We (at the CCMB) discovered a protein
called seminal plasmin (published in Nature and widely publicised in the late 1970s around the world); a few years ago, we
showed that it has anti-HIV properties. This work, however,
was never permitted to be pursued in the country. It could
have made us a leader in this field. Also, the story of development Of DNA fingerprinting technique in the country, and the
innumerable blocks that were placed in way of its commercial
exploitation, is already well known."
Probably the saddest thing in this entire exercise is that till date our government has not come up - in the ongoing negotiations on the Convention on Biodiversity (CBD) - with a clear proposal demanding that foreign patent holders pay for the knowledge they obtain from the Indian people.
In an increasingly interdependent world in which we all benefit from the knowledge of others, it would probably be unfair as well as impossible to outlaw any foreign interest in our inherited knowledge. But it would be extremely fair and legitimate to demand that if this interest results in a marketable product, a definite share in the royalties and other forms of income that emerge from the marketing of the product should accrue to India.
The international market system is built on the simple principle of pay fb@r whatever you use. But royalties from benefit-sharing in patents, or reliance on our capacity to export raw materials, will not yield us any considerable financial returns. If India prohibits exports or charges higher prices, competing nations will begin producing the required raw materials. For instance, if India is not prepared to export neern seeds or neem seed extracts, west African countries (which have large populations of neem) or Australia (whRh is undertaking neern plantations), will do so.
I Moreover, tissue culture techniques could be used to produce natural products in the laboratory. Rohm and Haas already has a patent on tissue culture techniques for neem. In November 1992, the journal Science reported that the "big agrochernical companies have been slow to jump on the neem bandwagon. The reason? It's extremely costly to extract the insecticide molecule, azadirachtin, from neem seeds, and no one's been able to take out a broad patent covering the molecule because its structure was published way back in the 1970s. What's needed, say business-minded pest-control experts, is a cheap way of making azadirachtin-like compounds that can be patented." And that is exactly what may be happening in Western laboratories.
The article also reported that Steven Ley at the Imperial College of Science and Technology in London had succeeded in synthesising the two chemical structures that together make up the azadirachtin molecule. David Morgan, a chemist from Keele University, who was the first to isolate azadirachtin from neem, suggested that using Ley@s reaction pathways, it may now be possible to make new and effective derivatives of azadirachtin in the laboratory.
Western science, of course, cannot be stopped from following this course. If India wants to enter the global pharniaceutical and agrochemical market in a big way, she must learn to innovate and patent and seize the world market with new products. It is her failure to do precisely this which has resulted in the Indian people having benefited so little from modem scientific research on neem.
Who do we blame? The government? Indian scientists? The politicians? Or just ourselves - members of the educated middle class - who seem to have precious little interest and pride in their own toots and traditions, whom Jean-Paul Sartre would have described as the 'whitewashed' sahibs of the colonised Third World? Partly everyone. But did we not push out the British half-a-century ago?
Bhargava cites "lack of imagination and ad-equate support, the Indian crab syndrome and increasing control of Indian science by a mafia since the mid-'60s" as reasons behind the situation. He adds, "Today, the best policy for u's would be to have all the patents on neem examined carefully in the light of existing knowledge, and contest those patents that are not legally justified. The examination has to be done by a group of comrr4tted patent experts and scientists whose knowledge and understanding of the problem is global."
A three-pronged strategy is the need of the hour'. Firstly, the country has to get its act together on ensuring that India's traditional knowledge becomes a legally valid entity. This is so that anyone who wants to benefit from it - not just W R Grace, but also Indian capitalists like the Sarabhais or the Daburs or the Indian state - is forced to pay royalties to the community from which it derives knowledge for commercial use. Unfortunately, the Indian state and its capitalists are as colonial towards community knowledge as foreign multinationals, Have you ever heard anyone forcing the otherwise great and dynamic cosmetic capitalist Shahnaz Hussian to pay for traditional knowledge? And why should she not? just because she has the same colour of the skin, does she acquire the right to commercialise the knowledge of the Ezhavas of Kerala or the Apatanis of Arunachal Pradesh without paying for it?
The CBD'S contention that all biodiversity is national property means nothing in terms of the knowledge of use of that biodiversity and the community's rights to that knowledge. It is like saying that Dhanbad's coal is a national resourcei but the knowledge (technology) for burning that coal efficiently will still be private property - an invention that win be patented by an individual or a corporation. The CBD's declaration clearly allows a nation to formulate its own laws also on the ownership of the knowledge of how to use the biodiversity - as drug, as pesticide or as a cosmetic.
The CBD, in fact, clearly stipulates that nations should develop 'benefit -sharing' systems with traditional communities. If anything, India's politicians and bureaucrats are guilty of not developing and implementing a commitment they have made in favour of their traditional communities internationally.
There is considerable confusion whether the wTo (World Trade Organization) agreement, which strengthens the patents regime. worldwide, goes against community rights on traditional knowledge of uses of biodiversity. The agreement as yet speaks mainly of an effective system for cultivated plant varieties and microorganisms. On the face of it, there is nothing in the WTo agreement which would prevent India from developing a strong patent system that would respect community rights to the knowledge about the use of plants. And even if this is not the case, there is no reason why developing countries cannot fight together in the wT6 far such a system.
There are other aspects OfCBD which could be cause for a conflict between it and wTo, For instance, the cBD states that if a foreign company takes biodiversity from another country, it must share its research results on that 'biodiversity with the biodiversity-donor nation. But the entire developing world put, together does not have the international clout to get the West to accept such clauses, which is why. cBD as an international convention remains in trouble.
The real problem in developing a system for protecting community knowledge arises not out of wro but out of the legal principles on which patent law Jtself is built. There are two problem areas. Firstly, patent law respects only private inventils; corporate inventions are respected only because corporations are accepted as individuals in patent law through a legal legerdemain. Community knowledge is therefore, by that very definition, knowledge in the public domain. How can that knowledge be patented under patent laws? But if legal jugglery can make a corporation an indiVidwl, then surely it can also turn the Gonds of India into an individual.
But what is a community? Are the Dasguptas of West Bengal and the Goenkas of Marwar examples of communities? Is an Indian village a community? In fact, in different cases, they may all be separate communities. And all Indians constitute a community, because the knowledge of neem was nationwide. Who will then receive. the royalties on behalf of these communities? These are undoubtedly complex legal issues and only a committed group of legal. scholars, given a clear charter by the government, can come up with solutions.
A problem that the author faced during the preparations to the Rio Conference is that of the bleeding heart 'liberal opinion', which holds that this pro- posed system, oft~n called the counter- patent system, pushes traditional com- munities into the evils of international commercial practices and that they should be kept away from this. The Centre for Science and Environment's (CSE) statement on global environ- mental&overnailce prepared before the Rio Conference had specifically demanded this. But many Indian non- governmental organisations felt that this could expose Indian tribals to exploita- tion. The then minister for enyi:ron- ment, Kamal Nath, did not understand either, although a few officials in the ministry of environment were more sympathetic to the idea but felt clueless on how to proceed with it.
It is now being widely recognised that such an opinion is totally against the economic interests of indigenous communities, because without a legal system that protects community r1ghts on the knowledge of biodiversity use, everyone will steal that knowledge. Fortunately, this false liberal opinion is now withering away. It is clear that clarification of the issue involved and developing a counter-patent system is the first step that needs to be urgently taken in this case.
The second pointer that neem patents specifically raise is how do we ensure-that the benefits of our traditional knowledge accrue to India and a not to afor- eign multinational. This brings us to the Tealm of research. Simply doing basic and applied research, as India has done in the past, will only mean that foreigners will pick it up and take it through the later stages, which will allow them to exploit a world market. India has an immense knowledge abo1.!t plants. As-an industrial giant, she must exploit the full world market by developing and launching products on her own.
Once there is clarity on this second issue, there will have to be a third component of our national strategy. India's research programme must go beyond basic and simple applied research on to industrial and product research. This cannot be done simply by state.owned researchlaborato!ies; nor can this be done by Indian private companies. A CSE staffer who inter- viewed managers in Dabur was told that they were not inter- ested in developing any new product because ~t was too expen - sive. Essentially, Indian companies want to limit their research costs to formulation and packaging so tl1at someth~ng can be sold in the market in a bottle or as a pill. A cooperative indus- try research programme is, therefore, vitally needed.
The South Korean approach may be useful and instructive here. Based on it, industrial and product research on neem could be declared an area of National Research Importance and given a specific budget over the next 10 years amounting to, say, Rs 300 crore. The programme could then be thrown open to any public or private sector scient~st to develop a research project that involves public and private laboratories, or a collaboration of both. While the scientific andindustriaf merit of the pro- posal would, of course, receive due consi - deration by the peer review group, whose deliberations ol;lce finalised will always be open to public scrutiny, the government could try to push the programme towards industrial participation by giving greater weight age to those proposals in which industry is prepared to put a greater per- centage of research costs.
To raise funds for !esearch on planr products, a cess can be levied on all pro- ducts that call themselves ayurvedic or , herbal; the funds can be used to finance this research and t,hus reduce direct government subsidies, though the programme should get as much g,overn- ment financial support as necessary. The fund could be overseen by a joint com- Jr.ittee of industry, public-s~irited citizens, scientists and (as few as possi- ble} government officials. The cess should be directly committed by the government to this fund so that it does not get lost in general administration and salaries of government officials.
There is one particular issue that would have to be taken account of while developing the above research strategy. According to several Indian neem researchers, many products of neem can be made using very simple processing techniques, which would be pa!ticularlyhelpful to India's poor ecC?nomy; if farmers can just mix neem leaves in water 'and use the material as a pesticidal spray, why should one worry about expensive processes which involve extraction of azadirachtin?
India cannot afford to neglect either approach. ,f she r~stricts herself to the appropriate technology route, then foreign companies will be left free to sell azadirachtin allover thewo;rld, and Indians can at best demand royalties for their traditional knowledge. The government could, however, pro- vide free legal service to researchers who develop new plant products of this kind, to explore if patent possibilities exist. If they do,. the government coufd become a joint partner in the patent to ensure that no Indian individual or company is restricted from using the knowledge, and to disallow foreig- tiers from developing such a product/use' without prior benefit-sharing agreements.
To understand the issue further, we have to see the global and national systems as a three-layered sandwich. The bottom layer consist;s of intelligent and active people who have, over centuries, given India her traditioJ!al knowledge resource base and who can even today give us an enormous range of plant products for human welfare and growth. The middle layer is made up of relativel.y slow, unambitious and tardy Indian scientists and industrialists who are interested in maktng use of the nation's traditional knowledgetoptoduce new products for the national market and needs -something like the marketing of Chyavanprash by ayurvedic companies. The top layer is made up of Western scientists and corporations who are making use of the traditional knowledge created by the two bottom layers in the developing world to identify and create new active principles and production processes, for acquiring a world market.
Indian activists can generate a lot of heat, by arguing that the top layer is feeding off the bottom layer and demand financial compensation in the form of royalities, which is definitely fair and just, and must be sharply fought for in both national and international political arenas. This itself requires a well- organised governmental effort. But big money and economic power Res, in beating the top layer in its own objectives, at least in areas where our own traditional knowledge has given us the initial edge. To do that, the middle layer of Indian scientists and industrialists cannot just aim to be panwalas trying to capture the village hdat. There is, in principle, nothing wrong with that objective. Bui Indians at the same time, have to organise themselves to beat the top layer at its own game in the world market. And the government has to play an aggressive and single- minded promotional and supportive role in triggering off such an effort. If we can do that, we can even plan to take over W R Grace of neem fame and Ciba Geigy of reserpine fame, and turn them into Indian companies, in a matter of few decades - just as what Malaysia has more or less done to Dunlop.
The sum and substance of all this is that the time has come for India to evolve a proactive strategy - legally, scientifically and industrially - to develop her traditional knowledge. If the experience with neem can propel India to take up such a challenge then she may have lost very little as yet.
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